Republic v Public Procurement Administrative Review Board & 3 others; Comprehensive Development Ltd (Ex parte)

**Republic of Kenya** **In the High Court of Kenya at Nairobi** **Milimani Law Courts** **Judicial Review Division** **HCJR No. E273 of 2026** **Republic…………………………….….............................................................Applicant** ***-And-*** **Public Procurement Administrative Review Board…………………............Respondent** ***-And-*** **Accounting Officer, Kenya Electricity Generating Company PLC..1st Interested Party** **Kenya Electricity Generating Company PLC ………………………...2nd interested Party** **Finton Logistics Limited………………………….…….………………3rd Interested Party** ***-And-*** **Comprehensive Development Limited……………..……..…………….*Ex-Parte* applicant** **JUDGMENT** 1. **Background** 2. The ex parte Applicant, Comprehensive Development Limited, participated in Tender No. **KGN-OLK-088-2026** floated by the 2nd Interested Party, Kenya Electricity Generating Company PLC, for the supply of spares and technical support services for CompAir compressors and geothermal power plants under a three-year framework contract. Following evaluation, the Applicant was identified as the successful bidder at an estimated contract value of Kshs.106,825,269.42, while the 3rd Interested Party, Finton Logistics Limited, was unsuccessful. 3. Aggrieved by the intended award, the 3rd Interested Party lodged Request for Review No. 92 of 2026 before the Public Procurement Administrative Review Board, the Respondent, on 24 June 2026. Its principal complaint concerned the Applicant’s compliance with Technical Requirements TR2 and TR4, relating respectively to the Certificate of Warranty and Manufacturer’s Authorisation Form (MAF), and the adequacy of the due diligence undertaken by KenGen to verify the authenticity and authority of the documents submitted by the Applicant. 4. The dispute before the Board principally concerned documents issued by Jiangmen Hongze Environmental Protection Co. Ltd. The Applicant maintained that it had complied with TR2 and TR4 and that KenGen had verified the documents and was satisfied with the outcome of its due diligence. The 3rd Interested Party, on the other hand, contended that Jiangmen Hongze lacked the requisite authority from the Original Equipment Manufacturer (OEM) to issue the Certificate of Warranty and MAF in respect of the products covered by the Tender. 5. The Tender Document required, under TR2, a Certificate of Warranty on the Manufacturer’s letterhead, while TR4 required a duly signed and stamped Manufacturer’s Authorisation or proof of being a manufacturer or an authenticated agent/dealership/OEM authorised dealer, together with contacts for verification. 6. In support of its challenge before the Board, the 3rd Interested Party relied on correspondence from entities within the Ingersoll Rand/Gardner Denver structure questioning or denying Jiangmen Hongze’s authority to supply the products in question or issue the relevant manufacturer documentation. It was contended that the authority relied upon by Jiangmen Hongze related to a different cooperation project in China and did not extend to the Engineering-to-Order products forming the subject of the Tender 7. After considering the parties’ pleadings, affidavits, documents and submissions, and hearing the parties on 9 July 2026, the Board delivered its decision on 14 July 2026. The Board found that the ex parte Applicant had submitted the documents required under TR2 and TR4 and had been technically responsive. However, it found that the due diligence undertaken by KenGen under section 83 of the Public Procurement and Asset Disposal Acthad not been sufficiently comprehensive to conclusively establish the extent of Jiangmen Hongze’s authority to issue the Certificate of Warranty and MAF. 8. The Board consequently directed KenGen to undertake fresh and more comprehensive due diligence, including verification of Jiangmen Hongze’s authority from the Original Equipment Manufacturer or another authoritative source, and thereafter proceed with the procurement process in accordance with the law. The Board did not itself declare the Applicant non-responsive or award the tender to the 3rd Interested Party. 9. Aggrieved by that decision, the ex parte Applicant obtained leave to commence the present judicial review proceedings and subsequently filed the Notice of Motion dated 27 July 2026. The Applicant principally seeks: 10. *An order of certiorari be issued to bring into the High Court for purposes of being quashed, the decision of the Public Procurement Administrative Board dated 14th July 2026 in Review Application No. 92 of 2026 in regard to Tender No. KGN-OLK-088-2026 for the supply of spares and technical support services for CompAir compressors and geothermal power plants.* 11. *An order of* ***prohibition*** *be issued restraining the Interested Parties from implementing the said decision the Public Procurement Administrative Board dated 14th July 2026 in Review Application No. 92 of 2026 in regard to Tender No. KGN-OLK-088-2026 for the supply of spares and technical support services for CompAir compressors and geothermal power plants.* 12. The ex parte Applicant’s case, in substance, is that the Board acted illegally, irrationally and unreasonably, exceeded its statutory mandate and usurped the functions of the evaluation committee by directing further due diligence after KenGen had already conducted the requisite verification. It further contends that the Board introduced a new or undisclosed standard of verification and interfered with the Procuring Entity’s discretion and the procurement process. 13. The Respondent opposes the Motion through a replying affidavit sworn by its Secretary, Philemon Kiprop, on 6 August 2026. Its position is that the Board acted within its statutory mandate, properly considered the material placed before it and reached a rational and lawful decision. It maintains that the Board did not substitute its own evaluation for that of KenGen but exercised its supervisory role in determining whether the due diligence conducted under section 83 was sufficient to resolve the issue regarding the authority of Jiangmen Hongze. 14. The Respondent further contends that the present proceedings amount to an attempt to challenge the merits of the Board’s determination under the guise of judicial review. It maintains that the Applicant has not demonstrated illegality, irrationality or procedural impropriety warranting intervention by this Court. 15. The 1st and 2nd Interested Parties, KenGen and its Accounting Officer, filed a Replying Affidavit sworn by Vincent Mamboleo dated 31 July 2026. Their position is materially distinct from that of the Respondent and the 3rd Interested Party. KenGen maintains that the Applicant had complied with TR2 and TR4 and that its evaluation committee properly assessed the Applicant’s bid. However, it does not object to the additional verification directed by the Board and states that such verification is neither onerous nor prejudicial to its interests, particularly given the need to establish the authenticity and enforceability of the manufacturer’s warranty and authorisation documents. It nevertheless takes no position on whether the Board exceeded its jurisdiction, leaving that question to the Court. 16. The 3rd Interested Party opposes the application through a replying affidavit sworn by Anthony Thairu on 4 August 2026. It supports the impugned decision and maintains that the Board acted within its statutory mandate. It contends that the evidence before the Board raised a material question as to whether Jiangmen Hongze was authorised to issue the warranty and MAF relied upon by the Applicant and that the additional verification directed by the Board was therefore a lawful exercise of its supervisory powers. 17. The 3rd Interested Party further maintains that the manufacturer’s correspondence showed that Jiangmen Hongze was not authorised to supply the particular Engineering-to-Order products or issue the relevant warranty and MAF. It therefore contends that the Board was entitled to require further verification and that the Applicant has failed to establish any illegality, irrationality, procedural unfairness or excess of jurisdiction. 18. In its Further Affidavit dated 6 August 2026 and Supplementary Affidavit dated 17 August 2026, the ex parte Applicant maintains its challenge to the Board’s decision and disputes the assertions concerning the authority of Jiangmen Hongze. The ex parte Applicant essentially reiterates that the Board had exceeded its mandate by directing a further verification exercise notwithstanding the evaluation and due diligence already undertaken by KenGen. 19. The ex parte Applicant through submissions dated 10 August 2026 argues that the Board’s decision dated 14 July 2026 was unlawful, irrational and unreasonable and was tainted by excess of jurisdiction. The Applicant contends that the Board had effectively usurped the mandate of KenGen’s evaluation committee by directing a fresh and more comprehensive due diligence exercise after the Applicant had already been found technically responsive and KenGen had undertaken due diligence pursuant to section 83 of the Act. The ex parte Applicant further submits that the Board introduced a new and undisclosed standard or “sufficiency matrix” for due diligence which was not contained in the Tender Document, and thereby interfered with the Applicant’s legitimate expectation that the procurement would be conducted strictly in accordance with the disclosed tender requirements. The Applicant maintains that the Board’s decision amounted to a merits review of KenGen’s evaluation and that the Court is entitled, in the circumstances, to examine the substance of the impugned decision in determining whether it was reasonable and lawful. The ex parte Applicant relies on, inter alia, ***Praxedes Saisi & 7 Others v Director of Public Prosecutions & 2 Others [2023] KESC 6 (KLR)*** and ***Judicial Service Commission & Another v Lucy Muthoni Njora [2021] eKLR*** on the scope of judicial review and the permissible extent of examination of the merits of an administrative decision. 20. The ex parte Applicant further submits that the Respondent acted in excess of its jurisdiction and ultra vires by directing the procuring entity to undertake a further round of due diligence after having found that the Applicant had complied with technical requirements TR2 and TR4 and that the procuring entity had undertaken due diligence before the intended award. It contends that TR4 expressly provided alternative modes of compliance, including reliance on a manufacturer, authenticated agent, dealership or OEM authorised dealer, and that the Board therefore introduced an additional and undisclosed standard by requiring verification from the principal manufacturer or another authoritative source. The Applicant argues that the Board thereby substituted its own administrative and factual preferences for those of the evaluation committee and imposed a standard of “sufficient” due diligence that was neither prescribed by the Tender Document nor disclosed to the tenderers, contrary to the principles of legality, fairness and transparency in public procurement. It further submits that judicial review in procurement matters permits a merits-sensitive inquiry where necessary to determine whether the decision-maker acted within statutory limits and applied the disclosed criteria. In support of its position, the Applicant relies, inter alia, on ***Sintmond Group Limited v Public Procurement Administrative Review Board & 2 Others, Civil Appeal No. E445 of 2026****,* and ***Republic v Public Procurement Administrative Review Board & another; Wodex Technologies Ltd (ex parte Applicant) Tana Solutions Limited (Interested Party), Judicial Review Application E104 of 2023 [2023] KEHC 24930 (KLR)****,* as well as the Board's decision in ***PPARB Application No. 22 of 2025 between Canon Security Services Kenya Ltd and the Accounting Officer, Independent Policing Oversight Authority & 2 Others****,* on the limits of due diligence. The Applicant consequently urges the Court to find that the Board had exceeded its jurisdiction and to grant the orders sought. 21. The Respondent, in its written submissions dated 14 August 2026, submits that the impugned decision was a lawful, rational and reasonable exercise of its statutory mandate in determining Request for Review No. 92 of 2026. It maintains that judicial review is concerned principally with the legality of the decision-making process and is not an appeal on the merits, and that the Applicant had failed to demonstrate illegality, irrationality, procedural impropriety, unreasonableness or excess of jurisdiction. The Respondent argues that its direction to the procuring entity to undertake further due diligence fell squarely within its power under Section 173(b) of the Public Procurement and Asset Disposal Act to direct an accounting officer regarding anything to be “done or redone” in the procurement proceedings, and that it neither usurped the functions of the evaluation committee nor determined the final outcome of the tender. It further submits that the Board was entitled to interrogate the adequacy of the due diligence undertaken, particularly where the authority of Jiangmen Hongze Environmental Co. Ltd. to issue the Manufacturer’s Authorisation and Certificate of Warranty had been questioned. The Respondent relies, inter alia, on ***Pastoli v Kabale District Local Government Council & Others [2008] 2 EA 300****,* ***Republic v Public Procurement Administrative Review Board & 3 Others ex parte Olive Telecommunication Pvt Limited [2014]****,* ***OJSC Power Machines Limited, TransCentury Limited and Civicon Limited (Consortium) v Public Procurement Administrative Review Board Kenya & 2 Others [2017] KECA 386 (KLR)*** and ***Republic v Public Procurement Administrative Review Board & another; Quality Inspection Services Japan & 8 Others (Interested Parties); Accounting Officer, Kenya Bureau of Standards & another (Ex parte Applicants) [2025] KEHC 18831 (KLR)***. The Respondent therefore urges the Court to dismiss the application with costs. 22. The 1st and 2nd Interested Parties, in their written submissions dated 30 July 2026 (filed on 8 August 2026), maintain that they were primarily interested in the lawful and expeditious completion of the procurement process and did not wish to be drawn into the dispute between the ex parte Applicant and the Respondent concerning the scope of the Board’s powers. They reaffirmed that the evaluation committee had correctly assessed the Applicant's compliance with TR2 and TR4 and that the Applicant had submitted the prescribed documentary requirements, which were found responsive; they further noted that the Board itself had found that the technical evaluation had been properly undertaken in accordance with section 80 of the Act and the Tender Document. The 1st and 2nd Interested Parties have no objection to undertaking the additional verification directed by the Board under section 83 of the Act, observing that due diligence was a standard component of the procurement process and that they had an institutional interest in ensuring the authenticity and enforceability of the manufacturer's authorisation and warranty documents. They nevertheless take no position on the prayers for certiorari and prohibition, leaving the question whether the Board acted within or exceeded its statutory mandate to the determination of the Court. 23. The 3rd Interested Party, in its written submissions dated 19 August 2026, submits that the Board acted within its statutory jurisdiction in directing KenGen to undertake further and more comprehensive due diligence regarding the authority of Jiangmen Hongze Environmental Co. Ltd. to issue the Manufacturer’s Authorisation and Certificate of Warranty relied upon by the Applicant. It maintains that the tender concerned Engineering-to-Order and custom-engineered CompAir products, that the relevant manufacturer structure included Gardner Denver Ibérica S.L. and Gardner Denver Shanghai, and that material placed before the Board questioned whether Jiangmen Hongze was authorised to issue the documents relied upon by the Applicant. The 3rd Interested Party contends that the Board did not introduce a new evaluation criterion, take over the functions of the evaluation committee, award the tender to Finton or declare the Applicant non-responsive, but merely directed KenGen to redo a step in the procurement process pursuant to Section 173(b) of the Act. It further submits that meaningful due diligence was necessary to resolve the specific question concerning Jiangmen Hongze's authority and that the Board’s intervention was consistent with Articles 47 and 227 of the Constitution. In support of its position, it relies, inter alia, on ***Sintmond Group Limited v Public Procurement Administrative Review Board & 2 Others, Civil Appeal E445 of 2026****,* ***Republic v Public Procurement* *Administrative Review Board & 2 Others; Ex parte Rongo University [2018] KEHC 9643 (KLR)****,* ***Republic v Public Procurement Administrative Review Board & 2 Others; Ex parte Dar-Yuksel-Ama [2022] eKLR****,* and ***Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others [2016] KECA 729 (KLR)****.* It consequently urges the Court to find that no ground for judicial review has been established and to dismiss the Notice of Motion with costs. 24. **ANALYSIS AND DETERMINATION** 25. Having considered the Statutory Statement, Verifying Affidavit, the Notice of Motion dated 27 July 2026 and the affidavits filed in support and opposition thereto, the impugned decision of the Public Procurement Administrative Review Board dated 14 July 2026, the Tender Document and the rival submissions, the Court considers that the following issues arise for determination: 26. *Whether the Respondent acted within its statutory mandate in directing the 1st and 2nd Interested Parties to undertake further due diligence pursuant to section 173(b) of the Public Procurement and Asset Disposal Act, 2015;* 27. *Whether, in directing further due diligence, the Respondent introduced a new or undisclosed evaluation criterion contrary to the Tender Document, section 80 of the Act and article 227 of the Constitution; and* 28. *Whether the impugned decision was otherwise tainted by a recognised ground of judicial review and, consequently, whether the ex parte Applicant is entitled to the orders of certiorari and prohibition.* 29. **Whether the Respondent acted within its statutory mandate in directing the 1st and 2nd Interested Parties to undertake further due diligence pursuant to section 173(b) of the Public Procurement and Asset Disposal Act, 2015** 30. The central question under this issue is not whether Jiangmen Hongze Environmental Co. Ltd. was, as a matter of fact, an authorised agent or dealer of the manufacturer. Nor is it whether this Court would have been satisfied with the due diligence undertaken by the procuring entity. Those are matters which would require the Court to determine the competing factual claims on their merits. The question properly before the Court is whether, having regard to the material placed before it, the Board lawfully exercised the power conferred upon it by the Act when it directed the procuring entity to undertake further verification before proceeding with the procurement. 31. Judicial review is concerned principally with the legality of the decision-making process and the lawful exercise of statutory power, rather than the merits of the decision under challenge. In ***Municipal Council of Mombasa v Republic & Umoja Consultants Ltd, Civil Appeal No. 185 of 2001 [2002] eKLR****,* the Court of Appeal held that judicial review is concerned with the decision-making process and that the Court should not assume the role of an appellate court by determining whether there was sufficient evidence to support the impugned decision. 32. The principle, however, does not insulate a statutory decision-maker from judicial scrutiny. A decision may properly be reviewed where the decision-maker acts outside the powers conferred by statute, misconstrues the law governing its mandate, takes into account irrelevant considerations, fails to take into account relevant considerations, acts unfairly or reaches a decision which is irrational or otherwise unlawful. The Court's task is therefore to ascertain the limits of the statutory power and whether the impugned decision remained within those limits. 33. The Board's jurisdiction in procurement disputes is principally derived from sections 167 and 173 of the Act. Section 167 permits a candidate or tenderer who claims to have suffered or risks suffering loss or damage as a result of a breach of a duty imposed on a procuring entity by the Act or the Regulations to seek administrative review. Upon completion of a review, Section 173 prescribes the orders which the Board may make. 34. Relevant to the instant matter is Section 173(b), which empowers the Board to: *give directions to the accounting officer of a procuring entity with respect to anything to be done or redone in the procurement or disposal proceedings.* 1. Section 173(b) gives the Board powers beyond merely affirming or setting aside what has already been done. The provision contemplates that an act in the procurement proceedings be done or redone upon the direction of the Board. The breadth of that power has been recognised by the High Court in ***Republic v Public Procurement Administrative Review Board & 2 Others; Ex parte Dar-Yuksel-Ama (A Consortium of Dar-Al-Handasah in Joint Venture with Yukselproje A.S & AMA Consulting Engineers Ltd; Korea Express Corporation (KEC) Korea Consultants International Company Limited (KIC) & Apec Consortium Limited & 2 others (Interested Parties)*** ***) [2022] KEHC 1172 (KLR)***, where the Court (A.K. Ndungu, J) held that section 173(b) empowered the Board to direct the doing or redoing of acts in procurement proceedings and that such directions did not, in themselves, amount to an interference with the independence or functions of the evaluation committee. 2. The existence of that power does not, however, confer upon the Board an unfettered discretion. This power must be exercised consistently with the Act and the Tender Document. The Board cannot, under the guise of directing something to be done or redone, compel a procuring entity to act contrary to the law or introduce requirements which the procuring entity itself was not lawfully entitled to impose. The Court (GV Odunga, J (as he then was) ) in ***Republic v Public Procurement Administrative Review Board & 2 Others; Ex parte Numerical Machining Complex Ltd [2016] KEHC 7468 (KLR)***emphasised the corresponding limitation that the Board’s powers, though broad, must themselves be exercised within the confines of the law and cannot be expanded through administrative innovation. The court held as follows: *Therefore where the law exhaustively provides for the jurisdiction of a body or authority, the body or authority must operate within those limits and ought not to expand its jurisdiction through administrative craft or innovation. The courts would be no rubber stamp of the decisions of administrative bodies. However, if Parliament gives great powers to them, the courts must allow them to it. The Courts must nevertheless be vigilant to see that the said bodies exercise those powers in accordance with the law. The administrative bodies and tribunals or boards must act within their lawful authority and an act, whether it be of a judicial, quasi-judicial or administrative nature, is subject to the review of the courts on certain grounds. The tribunals or boards must act in good faith; extraneous considerations ought not to influence its actions; and it must not misdirect itself in fact or law. See****Re Hardial Singh and Others [1979] KLR 18; [1976-80] 1”*** 1. In the request before the Board, the record indicates that KenGen had already evaluated the tenders and found the ex parte Applicant technically responsive. It thereafter undertook due diligence concerning the documents submitted by the Applicant. The dispute before the Board arose because material was placed before it which questioned the authority of Jiangmen Hongze to issue the Manufacturer's Authorisation and Certificate of Warranty relied upon by the Applicant. The Board neither determined that Jiangmen Hongze was unauthorised nor did it disqualify the Applicant or award the tender to the 3rd Interested Party. Rather, it directed 1st & 2nd Interested Parties to undertake further verification of that outstanding question before proceeding with the procurement 2. That distinction is material. The Board’s intervention must be assessed against the statutory power to direct that something be “done or redone”. It would be an erroneous characterisation of the impugned decision to treat it as though the Board had itself substituted its factual conclusion for that of KenGen. The Board did not make a final determination on the Applicant's eligibility. It directed the procuring entity to undertake a further administrative step and left the ultimate procurement decision to the procuring entity. The record accordingly does not disclose an exercise of the Board’s substitution power under Section 173(c), but rather the exercise of its power under Section 173(b). 3. The ex parte Applicant nevertheless contends that the Board acted ultra vires because KenGen had already undertaken due diligence and had found the Applicant responsive. The argument proceeds, in essence, on the premise that once the procuring entity exercised its discretion under Section 83, the Board could not require that exercise to be revisited. The Court does not agree with that proposition in its absolute form. 4. Section 83 provides that an evaluation committee may, prior to the award of a contract, conduct due diligence to confirm and verify the qualifications of the tenderer. The use of the word “may” confers a discretion upon the procuring entity; it does not, however, place the exercise of that statutory discretion beyond administrative review. Where the exercise of a statutory discretion is challenged as having been improperly undertaken, the Board is entitled, within its review jurisdiction, to consider whether the procuring entity complied with the statutory and tender requirements governing that exercise. 5. Conversely, the Board's power to review does not entitle it to substitute the evaluation committee’s assessment with its own preferred factual assessment merely because it might have undertaken the inquiry differently. The proper question is whether there was a lawful basis for concluding that the step already undertaken required further verification. This is particularly so because Section 173(b) expressly contemplates that an act in the procurement proceedings may be redone. 6. The material before the Board provides guidance in determining that question, not for the purpose of resolving the underlying dispute on the authority of Jiangmen Hongze, but for determining whether the Board had a rational and legally relevant basis for directing further verification. The Applicant relied upon, among other documents, a Manufacturer Warranty Form dated 23 April 2026 and a Manufacturer's Authorisation in support of its position that Jiangmen Hongze was authorised to issue the documents upon which its bid relied. Conversely, the 3rd Interested Party placed before the Board correspondence attributed to entities within the manufacturer structure which questioned the extent of Jiangmen Hongze's authority and stated, in material respects, that the authorisation relied upon did not extend to the Kenya Power Plant Project. 7. The significance of those competing documents for present purposes is limited. The Court is not called upon to determine which of the two versions is factually correct. Indeed, to do so would impermissibly transform these proceedings into an appeal on the merits. Judicial review is not the appropriate forum for resolving contested versions of fact where doing so would require the Court to determine the merits of the competing cases. 8. What the competing material demonstrates, however, is that a specific and material question had arisen concerning the authority of the entity which issued the documents relied upon by the Applicant. That question was not extraneous to the procurement. TR4 of the Tender Document required a Manufacturer's Authorisation and contemplated reliance upon an authenticated agent, dealership or OEM authorised dealer, while requiring information for verification of validity. The question whether an entity purporting to act as an authenticated agent possessed the authority it represented itself to possess was therefore connected to an existing requirement of the Tender Document. 9. In those circumstances, the Board was not required to accept, on face value, that KenGen’s initial verification conclusively disposed of the issue merely because KenGen had undertaken a due diligence exercise. The fact that due diligence had previously been conducted was itself part of the material before the Board. The Board was entitled to consider whether, in light of the material subsequently placed before it, that exercise had adequately resolved the particular issue raised in the Request for Review. The Board was confronted with an unresolved question concerning the validity and scope of the authority represented in the documents relied upon by the Applicant. Its direction that the procuring entity undertake further verification was consequently directed at resolving an outstanding process question, rather than determining the substantive entitlement of either bidder. 10. The Court is further fortified in this conclusion by the nature of the order actually made. The Board did not direct KenGen to reject the Applicant’s bid. It did not direct that the Tender be awarded to the 3rd Interested Party. It did not determine, as well, that the documents submitted by the Applicant were invalid. Instead, it directed the procuring entity to undertake further verification before proceeding. Such an order falls within the ordinary meaning of an act being “done or redone” under Section 173(b). 11. The Court is mindful that the Public Procurement Administrative Review Board is a specialised statutory tribunal entrusted with the resolution of procurement disputes. The Court should therefore be slow to interfere with a decision falling within the Board’s lawful sphere merely because another view of the procurement material may be possible. In ***Kenya Pipeline Company Ltd v Hyosung Ebara Company Ltd & 2 Others [2012] eKLR****,* the Court of Appeal recognised the Board’s specialised role and the breadth of its statutory powers, while emphasising that its decisions in matters within its jurisdiction should not be lightly interfered with. 12. That deference is not, however, abdication of this Court's supervisory jurisdiction. The Court reserves the power to determine whether the Board exercised its statutory power lawfully. In the present case, the impugned direction was anchored in Section 173(b), related to a step within the procurement proceedings, followed the emergence of a material question concerning the authority underlying documents relied upon under TR2 and TR4, and did not itself determine the final outcome of the Tender. 13. Accordingly, the Court finds that the ex parte Applicant has not demonstrated, on this ground, that the Board acted without jurisdiction or exceeded the statutory power conferred upon it by Section 173(b) of the Public Procurement and Asset Disposal Act. The fact that KenGen had previously undertaken due diligence did not, in the circumstances of this case, deprive the Board of its statutory power to direct that the relevant verification be undertaken again or more comprehensively. The first issue is accordingly answered in the affirmative. 14. **Whether, in directing further due diligence, the Respondent introduced a new or undisclosed evaluation criterion contrary to the Tender Document, section 80 of the Act and article 227 of the Constitution** 15. Having found that the Board was within its statutory mandate in directing the procuring entity to undertake further verification, the next question is whether the nature of that direction nevertheless amounted to an introduction of a new or undisclosed criterion after the tenders had been submitted. This issue requires consideration of the Tender Document itself, particularly TR2 and TR4, against the impugned direction. 16. The starting point is that public procurement must be undertaken within the framework disclosed to prospective tenderers. Article 227(1) of the Constitution requires a public procurement system to be fair, equitable, transparent, competitive and cost-effective. The requirement of transparency necessarily means that bidders must compete on the basis of criteria known in advance and that a procuring entity cannot, after submission of tenders, introduce a substantive qualification which was not contained in the Tender Document 17. Section 80 of the Act similarly requires evaluation to be conducted in accordance with the criteria set out in the Tender Document. The importance of that requirement is that the procuring entity must assess tenders against the prescribed criteria rather than against standards subsequently devised during evaluation. There is no room for shifting goal posts. The Board itself was therefore required, in reviewing the procurement process, to remain within the architecture established by the Tender Document. 18. In the present case, however, the relevant question cannot be answered by considering TR4 in isolation. TR2 required a Certificate of Warranty on the manufacturer's letterhead, signed and stamped, together with the contacts of the issuing person for verification of validity. TR4, in turn, permitted compliance through a manufacturer, an authenticated agent, dealership or OEM authorised dealer and required the authorisation to contain the issuing person's contacts for verification of validity. 19. The wording of TR4 is therefore significant for two reasons. First, it prescribed alternative means through which a tenderer could demonstrate the requisite manufacturer relationship. Second, it expressly contemplated verification of the validity of the authorisation. The Tender Document did not, therefore, provide that production of a document purporting to be an authorisation would, without further inquiry, conclusively establish the status of the issuer. 20. The ex-parte Applicant’s complaint is nevertheless that the Board went beyond verification of the documents submitted and imposed what it describes as a new standard or “sufficiency” threshold, namely that authority be confirmed by the OEM or principal manufacturer, or another authoritative source. It contends that TR4 did not require an OEM confirmation and that requiring one after the tenders had been evaluated amounted to changing the rules of the procurement after the event. 21. The Court accepts the underlying legal proposition advanced by the Applicant that due diligence cannot be used as a device to introduce a new evaluation criteria. Due diligence is a means of verifying compliance with the criteria already disclosed; it is not a licence to rewrite the criteria. This is consistent with the constitutional requirement of transparency and equal treatment in public procurement. The distinction is between verifying an existing qualification and requiring a tenderer to satisfy a qualification which was never prescribed. The question, therefore, is whether the Board's direction fell on the former or the latter side of that distinction. 22. On the material before the Court, the Court is satisfied that it fell within the former. Comprehensive elected to demonstrate compliance with TR4 through Jiangmen Hongze as an authenticated agent. The issue before the Board was consequently not whether Comprehensive should now be required to satisfy a different mode of compliance under TR4. Rather, it was whether the entity whose documents Comprehensive relied upon actually possessed the authority represented in those documents. 23. That question was material because the documents relied upon by Comprehensive were themselves central to its asserted compliance with TR2 and TR4. The Board was presented with correspondence from entities within the Gardner Denver/Ingersoll Rand structure questioning the extent of Jiangmen Hongze's authority in relation to the particular products and project forming the subject of the Tender. The material included correspondence stating that the authorisation relied upon related to a different cooperation project in China and that Gardner Denver Shanghai had not authorised Jiangmen Hongze for the Kenya Power Plant Project 24. Against that background, the Court does not consider that requiring verification from the manufacturer, principal manufacturer or another authoritative source necessarily constituted a new qualification. The source of verification is distinct from the substantive qualification prescribed by TR4. TR4 permitted a tenderer to rely upon an authenticated agent; the subsequent question was whether the entity presented as such was in fact authorised to issue the particular documents upon which compliance was claimed. 25. This distinction is important. Had the Board directed the ex parte Applicant to produce, for the first time, a document establishing a qualification which TR4 did not require, the Applicant's complaint would have considerable force. Equally, had the Board required every tenderer to comply through the manufacturer notwithstanding TR4's express recognition of authenticated agents and dealers, it would have effectively altered the Tender Document. That is not what the impugned decision did. 26. The Board did not direct that the ex parte Applicant could only comply through Gardner Denver. Nor did it determine that Jiangmen Hongze was incapable of being an authenticated agent. It directed KenGen to verify the authority of Jiangmen Hongze to issue the Manufacturer's Authorisation and Certificate of Warranty relied upon by Comprehensive. The final determination following that verification remained with the procuring entity. 27. The Court is also unable to accept the proposition that the mere fact that KenGen had previously verified the documents rendered any further verification impermissible. The original verification was conducted in circumstances where the procuring entity had obtained confirmation from Jiangmen Hongze itself. The subsequent material before the Board, however, raised a specific question concerning the authority of Jiangmen Hongze to issue the documents for the particular Tender. The Board was therefore entitled to require that question to be independently resolved. To hold otherwise would mean that a procuring entity could render its initial verification immune from scrutiny simply by having conducted an earlier verification exercise. 28. At the same time, the Court must guard against an interpretation of the Board's direction which would permit a procuring entity, or the Board itself, to impose an undefined requirement that a tenderer must produce whatever additional evidence may subsequently be considered “sufficient”. Such an approach would offend article 227 because it would introduce uncertainty into the procurement process and expose tenderers to standards not ascertainable from the Tender Document 29. The proper construction, in the Court's view, is therefore a limited one. The further verification directed by the Board must remain confined to determining whether the documents already relied upon by ex parte Applicant established the particular qualification required by TR2 and TR4. It cannot lawfully be converted into an opportunity to introduce a different qualification, require a different mode of compliance or undertake a fresh evaluation against undisclosed standards. 30. Properly understood in that manner, the Board's direction does not amount to a variation of the Tender Document. It was a direction to verify an existing requirement whose validity had been specifically placed in issue before the Board. The fact that the verification was to be undertaken from the OEM, principal manufacturer or another authoritative source does not, without more, transform the source of verification into a new substantive criterion. 31. The Court has also considered the Applicant's reliance on the alternative modes of compliance under TR4. That provision did not require a tenderer who relied upon an authenticated agent to obtain a separate authorisation directly from the manufacturer in every case. The Court therefore rejects any suggestion that direct OEM confirmation was itself an independent mandatory requirement under TR4. The significance of the OEM or other authoritative source in the present case arises from the particular evidentiary dispute concerning the authority of the entity that issued the documents, not from an alteration of the substantive qualification prescribed by TR4. 32. This distinction preserves both sides of the procurement equation. On the one hand, a procuring entity must respect the criteria disclosed in the Tender Document and cannot retrospectively raise the threshold for compliance. On the other, it cannot be required to treat a document as conclusive proof of a qualification where the very authority of the issuer has been materially challenged and the Tender Document itself expressly contemplates verification of its validity. 33. The Court therefore finds that the impugned direction did not introduce a new or undisclosed evaluation criterion. It constituted further verification of an existing requirement under TR2 and TR4, prompted by material which placed the authority of the issuer in question. The direction was accordingly consistent with the statutory and constitutional framework, provided that the subsequent verification remains confined to the disclosed requirements of the Tender Document. The second issue is therefore answered in the negative. 34. Having found that the Board acted within its statutory mandate and did not introduce a new evaluation criterion, the remaining question whether the impugned decision was tainted by illegality, irrationality, procedural impropriety, unreasonableness or any other recognised ground of judicial review so as to warrant the intervention of this Court is, consequently, answered in the negative. **C. CONCLUSION** 1. In the final analysis, the Court finds that the Respondent acted within the statutory mandate conferred upon it by Section 173(b) of the Public Procurement and Asset Disposal Act, 2015 when it directed the procuring entity to undertake further due diligence. The direction was connected to the verification requirements under TR2 and TR4 of the Tender Document and did not, in itself, introduce a new evaluation criterion or determine the final outcome of the procurement. 2. Consequently, the Court finds that the Ex parte Applicant has not established a basis for the grant of the orders of certiorari or prohibition. The Notice of Motion dated 27 July 2026 therefore fails and is hereby dismissed. Parties shall bear their own costs. The interim orders issued are discharged. **Dated and Delivered at Nairobi this 7th day of September, 2026.** **Nabil M. Orina** **Judge** ***Judgment virtually delivered in the presence of:*** ***Advocates for the Parties:*** ***Mr. Mogire for the Applicant*** ***Mr. Atwoli for 1st and 2nd Interested Parties*** ***Ms. Munene for the 3rd Interested Party*** ***Court Assistant:*** ***Linda Nyawira***